Clean Water Rule Definition of Waters of the United States Likely Inconsistent With Supreme Court’s Definition in Rapanos – Sixth Circuit Stays Clean Water Rule

Tue Oct 13th, On Environmental Law, by

Although the Obama Administration’s new Clean Water Rule: “Definition of Waters of the United States” (also known as the Waters of the United States Rule, or “WOTUS”), became effective in many states on August 28, 2015, the rule is now stayed across the nation by a decision by the Sixth Circuit last Friday, October 9, 2015.

The Sixth Circuit stayed the rule’s implementation nation-wide based on twelve petitions challenging WOTUS in eight different Courts of Appeal, including the Second, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, and District of Columbia Circuits. These petitions were consolidated by the Judicial Panel on Multidistrict Litigation (“JPML”). JPML selected the Sixth Circuit to hear the consolidated cases.

On the merits, the Sixth Circuit found the petitioners had demonstrated a substantial likelihood of proving the Clean Water Rule is invalid because the rule’s definition of “waters of the United States” is at odds with the U.S. Supreme Court’s definition set forth in Rapanos v. United States. Following the Sixth Circuit’s decision, WOTUS is stayed and the pre-WOTUS definition of Clean Water Act applies. EPA must continue to determine whether waters potentially impacted are “waters of the United States” on a case-by-case basis. This could impact permitting for pending development projects.

The court identified a jurisdictional issue that must be resolved during the stay — there are many petitions for review of the rule filed in the U.S. District Court, as well as the cases filed in the U.S. Court of Appeals, which were consolidated and heard by the Sixth Circuit. EPA has asserted that the U.S. Court of Appeals has jurisdiction over any challenge to the rule. Given the Sixth Circuit ruling on the merits, the jurisdictional question may be irrelevant. At any rate, the cases in the district court are going forward during the stay.

Prior to the Sixth Circuit ruling, a federal district court judge in North Dakota ruled to enjoin the implementation of the rule for 13 states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. On September 4, 2015, the North Dakota court held that the scope of its injunction was limited to the entities actually before it. This ruling left a piecemeal application of the rule in only some states, while it was enjoined in others. The Sixth Circuit cites the need for consistency as one of the reasons for a nation-wide stay of rule.

The States and plaintiffs challenging the rule allege that the rule is overreaching because it could be applied to areas that are dry most of the time. The rule could give EPA and the Corps jurisdiction over waters within a stream’s 100-year floodplain or within 4,000 feet of a high-tide line, which were not previously regulated by the Clean Water Act as “navigable waters of the U.S.” The states also argue that the rule will require them to devote more state resources in order to comply with federal pollution and water quality standards.

The rule, proposed on June 29, 2015 in the Federal Register, redefines the Clean Water Act’s “navigable waters of the U.S.” to include “those waters that require protection in order to restore and maintain the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas.” Congress defined “navigable waters” in section 502(7) of the Clean Water Act as “waters of the United States, including the territorial seas.” The term is critical to determine when a permit for discharge is required and to determine whether there has been an unlawful discharge to such waters in violation of the Clean Water Act.

The rule defines which features constitute riparian areas, floodplains, and tributaries under the Clean Water Act. The new definition allows for regulation of any area that has any amount of water with bed and banks and an ordinary high water mark. The definition excludes certain manmade ditches and drains, but includes wetlands that are remote and intermittent. EPA asserts that upstream waters fall within its jurisdiction of because they are integral parts of the aquatic environment and necessary to maintain the integrity of downstream waters; if these upstream waters are polluted, EPA claims, there is a significant effect downstream.

The rule specifically excludes certain types of (but not all) ditches and stormwater control features created in dry land and certain wastewater recycling structures created in dry land. Developers, industries with NPDES outfalls, farmers, vineyard owners, state and local governments, energy companies, and many others will be impacted by the new rule when it goes into effect.

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